Leveling the playing field

In this three-part series, we will discuss a shift in the traditional e-discovery power dynamic between large organizations and individual litigants. In the early days of e-discovery, individual plaintiffs wielded most of the power in their ability to wage large and expensive discovery against corporate parties. Now, the technology revolution has changed that power dynamic. Corporate litigants in a variety of cases have leveled the playing field by forcing individual plaintiffs to preserve and produce evidence from social media accounts, mobile devices and cloud sources. In part one, we will discuss the valuable evidence that individuals create on social media accounts, on their smart phones and in the cloud. In parts two and three, we will discuss case law focused on preserving and producing evidence from these sources, and practical tips both parties can use for dealing with this valuable evidence.

Brand new evidence

Since the advent of e-discovery, we have been hearing that we are in the midst of a “paradigm shift.” Emails, files and database information must be collected, processed, reviewed and produced. It’s more, it’s bigger, it’s more of a burden than paper ever was. True? Somewhat. A paradigm shift? Not so much. As anyone who practiced in the 70s and 80s, handling massive, complex, federal class action cases knows, lawyers (and their ever-expanding phalanxes of paralegals) were engulfed in paper. Collecting documents? Sending in a collection engineer is the proverbial piece of cake compared with spending weeks in an abandoned mine (“document depository”) reviewing century-old paper documents.

Now, however, we really do have a paradigm shift, because the playing field has changed. If discovery is a battle, corporations and other large organization litigants now have an important weapon: The ability to acquire and insist on the preservation of information that individual litigants and witnesses create and maintain in social media accounts, in the cloud and on their mobile devices. It’s brand new evidence that never existed before.

Social media—It’s more than you think

This should be e-discovery 101 for the seasoned litigator: Search the publicly available content of individual parties and witnesses on social media sites such as Facebook and MySpace. What may not be so obvious is requesting information about memberships in the myriad of smaller and more specialized sites that cater to interests around recreation, sports, religion, hobbies and lifestyle. Don’t forget about LinkedIn, which, although used for professional and networking purposes, may also be a source of discovery: Find out what the plaintiff in an employment case says about his skills and job experience, or how she characterizes her employer.

Aside from social media, if you have the time and some patience, you can find an astounding amount of “personal” information on the Internet without user names and passwords. According to Alexa.com (today, at any rate—this changes frequently), the top Internet sites today are: Facebook, Google, YouTube, Yahoo, Amazon, Baidu, Wikipedia, Windows Live, QQ.com and Taobao.com.

Although most people would only call a few of these social networking sites, one could argue that Yahoo!, Amazon and Google are as well, because users can leave messages, post comments, review products and ask questions on those sites—in plain view for everyone to see.

Spokeo.com is a paid service that allows one to put in a person’s name, email, username or phone number to find out if he has any social media accounts, along with where he was born, his phone number, and perhaps a picture of his person’s house and how long he has lived there. Even the free version allows the user to put in a name and see how many individuals across the country have that name (which is a little dispiriting when you find out that several hundred people have your very own special name).

Picture sites, such as Flickr and Picasa are a great untapped resource. Treasure troves of vacation pictures exist on private, semi-private and public accounts. Consider how easy it is to share all of your pictures publicly on Flickr.

Instagram, now owned by Facebook, is even better, given the spontaneity factor. Users can snap pictures and immediately upload them to Facebook and other sites, or maintain them on a standalone Instagram account, where other users can “follow” you. Armed with a user name and password, you gain access to more pictures in all of these sites.

Mobile devices

Smart phones and other mobile devices, iPads and tablets, as well as GPS units are fertile sources of pictures, messages and location information. However, we need to think more broadly—to show the opposing party that we are thinking broadly and expecting them to preserve this information.

For example, you request text messages in discovery, expecting to get iMessages from an iPhone. But there are other chat apps for phones and mobile devices. This site lists the 7 best chat apps for iPhones and iPads, and we should expect that users—especially younger users—are chatting on some or all of these apps.

Were you aware that Siri is also a source of information? The Apple end-user software license agreement (a non-negotiable, form contract for anyone who intends to use an iPhone) plainly explains that when you use Siri, your inquiries will be recorded and sent to Apple to be converted to text. By using Siri, the phone owner implicitly consents to Apple’s “transmission, collection, maintenance, processing, and use of this information” to provide and improve Siri and other Apple products and services. For users who have “Location Services” turned on, current location will be sent to Apple along with the inquiry itself. Siri data is stored for two years, and for the first six months a query can be retraced to the specific user who posed the question. Apple claims that they do not share Siri information with third parties, but the data appears to fall within the Federal Rules of Civil Procedure guidelines for what constitutes ESI (“sound recordings” are considered discoverable media). This means that during discovery, a party’s queries would likely be discoverable with a subpoena to Apple. Further, because Apple stores the queries as plain text, there is no need for advanced computer forensic software in ingesting, processing and analyzing the content of conversations with Siri.

Cloud sources

Simply put, hundreds of sites and applications now store data in the cloud. Google Docs, Yahoo, InfoPreserve, Box.com—businesses use these sites, but individuals use them for both work and personal reasons. Evernote is a site that allows users to take notes, photograph handwritten notes, create and apply tags, store video, run searches, and more, and is only one of many notes apps. Given our societal drive to record every aspect of our lives, Evernote and similar sites can be a gold mine. Drop Box is a popular site that allows users to share documents. Even after an account is deleted from a PC or mobile app it may still be accessible from a home PC. Companies suspecting that an employee may have stolen trade secrets may find important information in a legacy Drop Box account without the need for a forensic examination. Lemon.com is a site that allows users to snap pictures of receipts, upload, access from a desktop account, and export a wealth of information about the receipt—pre-populated by the application—into a spreadsheet. Good record keepers and technophiles looking to download and use the latest app create information that may later be the subject of discovery.

Is your head spinning yet? On this site you will find a list of the top 100 business apps for the iPad. Lawyers need to understand what is out there and what content exists. Don’t limit your requests to text messages and emails.

A glimpse into the future

A study by the Pew Charitable Trust has given us a tantalizing glimpse into the future of e-discovery and individual Internet content. This study concluded that younger users are moving away from sites like Facebook and toward multiple memberships in smaller and more specialized sites where they seem willing to expose greater personal information than they would on Facebook or MySpace. The future individual litigant will have more social media memberships and reveal more personal information on them. More work, but potentially more reward for trial counsel.

Conclusion

Not all of these sources, or all of the information stored there, are relevant to your case. However, as counsel for an organization being sued by an individual, you are not prepared unless you know that there are hundreds of social networking sites, mobile device apps and cloud sources, with more emerging each day, any of which could contain vital information. You have a strong strategic weapon just by knowing that these sources of information exist and proliferate. Informing your opponent that you plan to request Facebook content and asking that it be preserved is now commonplace. Telling your opponent that you plan to conduct discovery from the sources mentioned in this article—and more—sends a strong message that you plan to explore their entire Internet and cloud presence. Create a process of checking publicly available information across the Internet. Stay prepared by keeping a running list of new personal and business apps that can house a wealth of information. We have only seen the beginning of this paradigm shift.